DearColleague.us

Letter

From: The Honorable Peter A. DeFazio

Sent By: travis.joseph@mail.house.gov

Date: 3/23/2009

LOW-INCOME AND DISABLED AMERICANS DESERVE THE RIGHT TO APPEAL A SOCIAL SECURITY ADMINISTRATION DECISION

Become an original cosponsor in the 111th Congress

Deadline: COB Wednesday

110th Cosponsors (17): Boozman, Blumenauer, Carnahan, Courtney, Danny Davis, DeLauro, Farr,

John Hall, Hooley, Jackson-Lee, McNerney, Pomeroy, Schakowsky, Space, Stark, Watt, Wu Dear Colleague:

Every American deserves his or her day in court. Needy Americans and Americans with disabilities should be no exception. Unfortunately, a re-interpretation of U.S. Code by the Bush Administration Department of Justice (DOJ) is preventing a group of Social Security Disability (SSD) and Supplemental Security Income (SSI) claimants from challenging unfavorable SSA rulings in court. I am re-introducing legislation in the 111th Congress (H.R. 5833 in the 110th) to provide a solution to this serious legal issue. I urge you to join me in advocating for the legal rights of disabled and indigent persons by cosponsoring this bill.

Background:

Under the Equal Access to Justice Act (EAJA), low-income claimants who prevail against the

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government in court may seek compensation for attorney fees. These EAJA awards are critical to ensuring that needy claimants, such as SSD/SSI claimants who would otherwise not have the resources to get representation, are able to take the government to court when they have a legitimate grievance.

In the past, EAJA awards were made payable to the prevailing claimant’s attorney. However, the Bush Administration DOJ challenged this precedent in court by arguing that EAJA awards should go directly to the plaintiff. This is important because if the EAJA fee is awarded to the plaintiff, it can be garnished by the government before the fee is awarded to the plaintiff’s legal counsel when the plaintiff owes a debt. The Tenth Circuit Court ruled to uphold the Bush DOJ policy change in December, 2007; thus, a legislative fix is necessary.

The Bush DOJ claimed it challenged this policy to crack down on delinquent accounts and people who owe federally collectible debt (like child support). It may be a reasonable policy in some circumstances. It is not a reasonable policy in cases involving SSD/SSI claimants. Since SSD/SSI claimants typically owe debt, exactly because they are disabled and are unable to work to support themselves, a significant number of EAJA awards in Social Security civil cases have the potential for being offset by the government each year. When the EAJA fee is partially offset, Social Security attorneys receive only a portion of their already reduced legal fees and expenses. When the EAJA fee is wholly offset, attorneys for disabled claimants receive no EAJA fee at all.

This is beginning to have a devastating impact on individuals within a group of SSD/SSI claimants (like non-custodial parents who have child support orders in place) because Social Security attorneys are unlikely to take on cases if their prospective client owes a debt. Even if the attorney is confident he or she can win the case, attorneys often will not take a case when they are likely not to be compensated. The result is that some of the most vulnerable disabled claimants with legitimate claims against the SSA are losing access to the court system, and thus losing their right to appeal an SSA decision.

It’s a lose-lose situation for everyone involved: attorneys are less likely to take on even the most meritorious cases if SSD/SSI claimants owe debt; certain SSD/SSI claimants do owe debt so they have trouble getting representation; since disabled SSD/SSI claimants will not be going to court as often, the government will not collect on owed debt; and, critically, SSD/SSI claimants with legitimate grievances against the government will not get the assistance they often have a right to and their children will not get the auxiliary benefits they’re eligible for.

In response to the Bush DOJ policy re-interpretation, I will re-introduce legislation to provide a legal fix. This legislation would clarify that EAJA fees awarded in an action brought against the Social Security Administration, and the SSA only, the EAJA fee would be exempt from being used to offset a plaintiff’s debt. This change would restore the original intent of the law, which is to increase access to courts when claimants have a meritorious case against the federal government, without interfering with the government’s attempts to enforce its policy to collect on debt.

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For more information, or to cosponsor this legislation, please contact Travis Joseph (travis.joseph@mail.house.gov; 56416) in my office.

Sincerely,

/s/ PETER DeFAZIO

Member of Congress